The Complainant is Syngenta Participations AG, Switzerland, represented internally.
The Respondent is Yabani Eze, Sugarcane Internet Nigeria Limited, Nigeria.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 13, 2021. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. Also on the same day, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 17, 2021. This communication, as well as following communications from the Center to which the Respondent was copied, triggered automated responses from the Respondent’s email address that stated the following: “Our office is closed for a short time while we are on holiday. We will get back to you as soon as we can but there could be a delay. Please be patient with us”. In accordance with the Rules, paragraph 5, the due date for Response was January 6, 2022. The Respondent did not submit any substantive response. Accordingly, the Center notified the Respondent’s default on January 10, 2022.
The Center appointed Tobias Malte Müller as the sole panelist in this matter on January 18, 2022. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual BackgroundAccording to the Complainant’s undisputed allegations, the Complainant is a global, science-based agrochemical company with 28,000 employees in 90 countries. Its products include agrochemicals for crop protection as well as vegetable and flower seeds.
The Complaint is based, amongst others, on the International trademark for the term SYNGENTA, No. 732663, registered on March 8, 2000, designating a variety of jurisdictions, for goods and services in classes 01, 02, 05, 07, 08, 09, 10, 16, 29, 30, 31, 32, 35, 36, 41, and 42.
The disputed domain name was registered January 16, 2021. The language of the registration agreement at the time of registration was English.
According to the Complainant’s undisputed further allegations, the disputed domain name currently resolves to a website that displaying auto-generated pay-per-click (“PPC”) links, including agricultural themed links for seeds and fertilizers operated by third parties.
On November 11, 2021 the Complainant contacted the Respondent through the Registrar’s website with a cease-and-desist notification detailing the Complainants intellectual property rights. The Complainant did not receive any response to this request.
5. Parties’ Contentions A. ComplainantFirstly, the Complainant points out that the disputed domain name is confusingly similar to the registered trademark SYNGENTA in which the Complainant has rights. In fact, the disputed domain name contains the trademark SYNGENTA identically followed by the geographical suffix “us”.
Secondly, the Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. In particular, the Respondent has no affiliation with the Complainant nor is the Respondent authorized to use the Complainant’s registered trademark. Finally, the disputed domain name is currently resolving to a PPC site.
Thirdly, the Complainant contends that the Respondent registered and uses the disputed domain name in bad faith. The Complainant submits that the agricultural links suggest that the Respondent had actual knowledge of Syngenta’s business, and services and thereby is attempting to trade off a well-known brand in order to divert Internet traffic for commercial gain. Bad faith has been found in many cases of domain name registrations that incorporate a well-known trademark and resolve to a PPC site. Furthermore, the fact that the Respondent failed to respond to the cease-and-desist correspondence can also be considered an element of bad faith. All these factors combine to point to a clear case of bad faith.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsParagraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
Paragraph 4(a) of the Policy requires the Complainant to prove each of the following three elements in order to obtain an order that the disputed domain name should be transferred or cancelled:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel is satisfied that the registrant of record for the disputed domain name is the Respondent and will therefore proceed to analyze whether the three elements of paragraph 4(a) of the Policy are satisfied.
A. Identical or Confusingly SimilarPursuant to paragraph 4(a)(i) of the Policy, the Complainant must first of all establish rights in a trademark or service mark and secondly establish that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights.
The Complainant has provided evidence that it is the registered owner of registrations for the verbal trademark SYNGENTA, e.g. International trademark for the term SYNGENTA, No. 732663, registered on March 8, 2000, and designating a variety of jurisdictions.
While each case is judged on its own merits, in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing see section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). This Panel shares this view and notes that the Complainant’s registered trademark SYNGENTA is fully included in the disputed domain name.
According to the consensus view of UDRP panels, where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element (see WIPO Overview 3.0, section 1.8). It is the view of this Panel that the trademark SYNGENTA is clearly recognizable within the disputed domain name. Consequently, the combination of that trademark with the letters “us” does not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trademark.
Hence, this Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark pursuant to the Policy, paragraph 4(a)(i). Policy paragraph 4(a)(i) is satisfied.
B. Rights or Legitimate InterestsPursuant to paragraph 4(a)(ii) of the Policy, the Complainant must secondly establish that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
Paragraph 4(c) of the Policy contains a non-exhaustive list of circumstances which, if found by the Panel to be proved, shall demonstrate the Respondent’s rights or legitimate interests to the disputed domain name. In the Panel’s view, based on the undisputed allegations stated above, the Complainant has made a prima facie case that none of these circumstances are found in the case at hand and, therefore, that the Respondent lacks rights or legitimate interests in the disputed domain name.
According to the Complaint, which has remained unchallenged, the Complainant has not authorized the Respondent’s use of the trademarks SYNGENTA, e.g., by registering the disputed domain name comprising said trademark entirely.
Furthermore, the Panel notes that there is no evidence showing that the Respondent might be commonly known by the disputed domain name in the sense of paragraph 4(c)(ii) of the Policy.
In addition, it results from the Complainant’s undisputed allegations that the disputed domain name resolves to a website featuring PPC advertisement links. In the Panel’s view such commercial use cannot – from the outset – be considered a legitimate, noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue pursuant to paragraph 4(c)(iii) of the Policy.
Finally, such use cannot be qualified a bona fide offering of goods or services in accordance with paragraph 4(c)(i) of the Policy. In fact, this Panel shares the view of previous UDRP panels holding that the use of a domain name to host a parking page comprising PPC links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the Complainant’s mark or otherwise mislead Internet users (see section 2.9 of the WIPO Overview 3.0). This is the case here, since the PPC links refer to product categories such as seeds and fertilizers, which reflect the Complainant’s fields of activity.
Previous UDRP panels have found that once the panel finds a prima facie case is made by a complainant, the burden of production under the second element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the disputed domain name. Since the Respondent in the case at hand failed to come forward with any allegations or evidence, this Panel finds, in the circumstances of this case, that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant has therefore satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithAccording to paragraph 4(a)(iii) of the Policy, the Complainant must thirdly establish that the disputed domain name has been registered and is being used in bad faith. The Policy indicates that certain circumstances specified in paragraph 4(b) of the Policy may, “in particular but without limitation”, be evidence of the disputed domain name’s registration and use in bad faith.
One of those circumstances are those specified in paragraph 4(b)(iv), i.e., where a domain name is used to intentionally attempt to attract, for commercial gain, Internet users to a respondent’s website or other online location, by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on your website or location.
In the Panel’s view, the Respondent has intentionally registered the disputed domain name which contains the Complainant’s distinctive trademark SYNGENTA in its entirety, merely adding a short additional term “us”, which may constitute the two-letter country abbreviation for the United States of America. By the time the disputed domain name was registered, it is therefore unlikely that the Respondent did not have knowledge of the Complainant and its trademark SYNGENTA.
The Complainant also provided evidence that the Respondent is using the disputed domain name to lead to a website featuring PPC-advertisement links including agricultural themed links for seeds and fertilizers. This is indicative of bad faith, even if the webpage is configured automatically by the registrar or any other party. Indeed, particularly with respect to “automatically” generated PPC-links, previous UDRP panels have held that a respondent cannot disclaim responsibility for content appearing on the website associated with its domain name (nor would such links ipso facto vest the respondent with rights or legitimate interests). Neither the fact that such links are generated by a third party such as a registrar or auction platform (or their affiliate), nor the fact that the respondent itself may not have directly profited, would by itself prevent a finding of bad faith (see section 3.5 of WIPO Overview 3.0).
These facts confirm that the disputed domain name is used to intentionally attempt to attract, for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website.
Finally, the further circumstances surrounding the disputed domain name’s registration and use confirm the findings that the Respondent has registered and is using the disputed domain name in bad faith:
- the disputed domain name identically includes the Complainant’s distinctive trademark, which has been registered well before the disputed domain name;
- the Respondent did not provide any formal response to the Complainant’s contentions with conceivable explanation of its behavior so that no legitimate use of the disputed domain name by the Respondent is actually conceivable for the Panel;
- the Respondent did not substantially react on to the Complainant’s cease-and-desist communications sent before starting the present UDRP proceedings. The Respondent’s automated responses are irrelevant in this context.
In the light of the above, the Panel finds that the disputed domain name has been registered and is being used in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name
Tobias Malte Müller
Sole Panelist
Date: February 1, 2022